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The Impact of Employment Termination Or Layoff On Immigration Status And Applications

Basic Concepts

Nonimmigrant status that is petition-based, such as H-1B, H-1C, H-2B, H-3, L-1A/L-1B, O-1/O-2, P-1/P-2/P-3, Q-1 or R-1, as well as some non-petitioned statuses, such as E-1/E-2 and TN, are generally regarded as terminated when the employment associated with that status ends. Dependent's family members who hold Derivative Visa Status also lose their status when the principal nonimmigrant's status ends.

There is no grace period when the nonimmigrant status ends, so strictly speaking a nonimmigrant is "out of status" beginning upon the termination of the approved employment relationship.

Being "out of status" (regardless that the expiration date on the nonimmigrant's l-94 Record Card might not yet have arrived) means that the U.S. government may detain the nonimmigrant and/or begin removal (deportation) proceedings.

Please click here for a chart comparing the impact of employment termination on various immigration statuses.

H-1B Specific Issues

Portability

Portability applies only to foreign nationals who have been granted H-1B status or have been issued an H-1B Visa. Portability allows such a person who is present in the U.S., to begin work for a new employer as soon as the new employer files an H-1B petition with the Citizenship and Immigration Service ("CIS"). Maintaining lawful H-1B status is not required for portability. However, if the new employer's H-1B petition asks the CIS to extend the period of time for which the H-1B nonimmigrant may remain in the U.S., the CIS may deny the extension of said request if the nonimmigrant was not maintaining lawful status on the day the new employer filed its H-1B petition. If the CIS were to approve the new employer's H-1B petition, but deny the requested extension of the nonimmigrant's stay, the nonimmigrant would be required to depart the U.S. and apply for either an H-1B visa or readmission to the U.S., or both, in order to resume lawful H-1B status in the U.S. Please see Portability FAQs for more information. For additional information, please see http://www.uscis.gov/files/pressrelease/ChangesH-1BProgram_112100.pdf, Q10, Q11 or Q12.

Maintenance of Status

The CIS has said that an H-1B nonimmigrant who is present in the U.S. during a severance period is not considered to be maintaining status. However, in an H-1B case where a new employer requests an extension of the nonimmigrant's H-1B status, the CIS may look at such indicators as how recent the latest nonimmigrant's earnings statement is in deciding whether to grant an extension of stay.

Impact on Green Card Application

Most employment-based applications for Permanent Resident (Green Card) Status are employer-sponsored. By employer sponsored, we mean that the foreign national's Green Card case is the result of efforts initiated by the employer - not by the foreign national on his or her own behalf. The majority of Green Card cases involve three stages:

labor certification;

immigrant petition; and

either Adjustment of Status or Consular Processing. (Some cases involve only stages 2 and 3.)

If a nonimmigrant's employment ends before the nonimmigrant is granted Permanent Resident Status as a practical matter, the Green Card case ends without the nonimmigrant's being able to obtain resident status. Only if a foreign national is at the third stage and has an unadjudicated adjustment of status application pending with the CIS for 180 days or more may the foreign national change jobs or employers. However, the new job must be in the same or similar occupational classification as the one for which the immigrant petition was filed. See Section 106(c) of the American Competitiveness in the Twenty First Century Act which is reproduced at http://www.uscis.gov/news/questions-and-answers/questions-about-same-or-similar-occupational-classifications-under-american-competitiveness-twenty-first-century-act-2000-ac21. Essentially, the only employer-sponsored (Green Card) cases that, as a practical matter, may continue despite employment termination are those where the foreign national has had an unadjudicated I-485 Adjustment of Status Application pending with the CIS for 180 days or more.